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Derivative work
'' (1919). Derivative work by Marcel Duchamp based on the Mona Lisa (La Gioconda) by Leonardo da Vinci. Also known as The Mona Lisa With a Moustache. Often used by law professors to illustrate legal concept of derivative work.]] In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work (the underlying work). United States law Definition In the United States, the Copyright Act defines "derivative work" in : A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. The fair use defense in derivative work cases Even if a work is found to be an unauthorized derivative work, an alleged infringer can escape liability via the defense of fair use. For example, in Campbell v. Acuff-Rose Music, Inc., the Supreme Court found that although a parody of the song "Oh, Pretty Woman" by 2 Live Crew was an unauthorized derivative work, fair use was still available as a complete defense. This case marked the Supreme Court's pointing to transformativeness as a major clue to application of the fair use defense to derivative works. The defense of fair use has become very important in computer- and Internet-related works. Two 1992 Ninth Circuit decisions are illustrative. In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,964 F.2d 965 (9th Cir. 1992), available on http://en.wikisource.org/wiki/Lewis_Galoob_Toys,_Inc._v._Nintendo_of_America,_Inc. the appellate court held that it was a fair use for owners of copies of video games, such as Super Mario Bros., to use Galoob's product the Game Genie to customize the difficulty or other characteristics of the game by granting a character more strength, speed, or endurance. Nintendo strongly opposed Galoob's product, allegedly because it interfered with the maintenance of the "Nintendo Culture," which Nintendo claimed was important to its marketing program.See Richard H. Stern, The Game Genie Case: Copyright in Derivative Works versus Users' Rights, 1992 3 ENTERTAINMENT L. REV. 104 The court held, among other things, that the fair use defense shielded Galoob's conduct. The court said that "a party who distributes a copyrighted work cannot dictate how that work is to be enjoyed. Consumers may use ... a Game Genie to enhance a Nintendo Game cartridge’s audiovisual display in such a way as to make the experience more enjoyable." In Sega Enterprises, Ltd. v. Accolade, Inc.,977 F.2d 1510 (9th Cir. 1992), available at http://digital-law-online.info/cases/24PQ2D1561.htm the court excused Accolade from copyright infringement liability on fair use grounds. Nintendo and Sega produced video game consoles. Each stored the games in plastic cartridges that provided game data to the consoles. By way of analogy, the Sega hardware console's “platform” differed from Nintendo's, as a Macintosh platform differs from that of a PC. Hence, a video game cartridge that works on one system does not work on the other. Sega and Nintendo sought to “license” access to their hardware platforms, and each company developed software "locks" to keep out cartridges that did not have the proper "key." Accolade sought a license from Sega for its key, but negotiations broke down over price. Accolade then decided to reverse engineer Sega's lock and key system. To do so, it had to download (copy) all of the computer code from Sega's product and disassemble it (translate it from machine code into human-readable assembly). Accolade succeeded and began to market new video games that it independently wrote, which were capable of being operated in Sega consoles. This led to copyright infringement litigation, in which Sega alleged that the downloading was improper copying (reproduction) of Sega's code. The court held that Sega was trying to use the copyright in its computer code to maintain a monopoly over the sale of video games, to which it was not legally entitled. Accolade downloaded the computer code only to ascertain how the lock worked, so that it could make a key that would permit its games to work in Sega consoles. The court held that such a use was fair use: "We conclude that where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law."977 F.2d at 1527-28. See also * Authorship * Plagiarism * Copyright Act of 1976 * Copyright aspects of hyperlinking and framing * Galoob v. Nintendo * Intellectual property * Merchandising * Patent * Trademark * Tie-in * Trade secret * Work for hire * Creative Commons References External links *US Copyright Act (Hosted by the Copyright Office) *US Copyright 'Derivative Works' (Hosted by the Copyright Office) *Frequently Asked Questions (and Answers) about Derivative Works. Chillingeffects.org. *Article "Geek Law: Derivative Works" by Lawrence Rosen. Linuxjournal.com *Article "DERIVATIVE WORK RIGHTS" by David M. Spatt. Artslaw.org. *Article "L.H.O.O.Q.--Internet-Related Derivative Works" by Richard H. Stern *Article "Derivative Works" by Sarah Ovenall. Funnystrange.com. Category:Copyright law Category:Fair use